ADI Report /Publication

ANTI
DEPORTATION IRELAND

PRELIMINARY
REPORT ON DEPORTATION IN IRELAND

The
human and economic costs of deportation

Dublin, 2012

EXECUTIVE SUMMARY

The
deportation of so called failed asylum seekers and illegal migrants, like their
detention and dispersal, has become an integral part of migration policies in
Ireland reflecting a wider European trend. While deportation has been
legitimised as a cornerstone of immigration control and naturalized as a
routine procedure, this report for Anti
Deportation Ireland, highlights the human costs of deportation, focusing on
the trauma, suffering, unjust and brutal treatment experienced by deportees and
their families. Anti-Deportation Ireland (ADI) is a national network of
activists, asylum seekers, refugees, community workers, trade unionists, and
academics who have come together to campaign against forced deportation in
Ireland, and for the abolition of the direct provision system.

The main findings of this preliminary report
are outlined below:

-Deportation is an extremely traumatic
experience for those who are forcibly removed and for their families, friends
and members of the communities into which they have integrated. The conditions
under which people are deported are inhumane and degrading often involving the
use of violent methods of restraint and psychological intimidation.

-One in five people deported from Ireland
since the start of 2010 were children. Deporting children, who may have been
born in Ireland and never been to the countries they are being returned to, is a
hardly justifiable practice.

-Deportations are ineffective. The
argument that they ensure the integrity of the immigration regime is highly
speculative. The relevant gap between deportation orders issued and
deportations orders effected not only proves the point but also shows that an
increasing number of people are living in precarious conditions of
‘deportability’ experiencing its attendant consequences in terms of lack of
rights, anxiety, stress and inability to carry on with one’s life.

-Deportations are hugely costly. The
overall cost of removing 280 persons from Ireland in 2011 was in excess of €1
million.

-The lack of independent monitoring
procedures also raises serious concerns in relation to how deportations are
carried out.

-The lack of follow-up or tracking
procedures means that there is very limited knowledge of what happens to
deportees after they are deported.
However some journalists and scholars have provided evidence of deportees
experiencing extreme socio-economic marginalisation, mental health and
substance abuse issues, and even torture and incarceration in the countries to
which they are returned.

-International reports have criticised
Ireland for detaining people awaiting deportation and/or for immigration
related reasons in ordinary prisons, questioning the legal basis of such
practice, the lack of legal safeguards for immigration detainees and their
treatment in detention.

-There is very limited scope to challenge
deportation decisions in Ireland because there is no independent appeals body.

-The practice of deporting individuals who
may have an EU or Irish spouse/partner constitutes a breach of the EU free
movement directive.

-Despite the State’s claims that the
direct provision system provides the best value for money, all international
and national research available is consistent in showing that the system violates
asylum seekers’ basic rights to housing, family life, food, health, work and
education. Considering that the system
fails to ensure an adequate standard of living, the level of expenditure
associated with it is unacceptable.

1. INTRODUCTION

‘The word banish rhymes with vanish. Through banishment or deportation there is literal threat
of invisibility. Not only when the event is concretized, but in the anguish and
the uncertainty leading to that. Made invisible. Made meaningless. Superfluous.
To others. To ourselves’ (Margaret Randall, quoted in Peutz, 2010)

Deportation, like detention and dispersal, has become an
integral part of migration control in Europe and part ‘of the everyday
experience of hundreds of thousands of people across Europe’ (Bloch and
Schuster, 2005: 492). Because deportation has become so ‘embedded within the
contemporary administrative practice of Western states’, it has not be subjected
to the same critical scrutiny as immigration and refuge policies (Walters,
2002: 266). While deportation has been naturalized as a routine and
administrative procedure, this report highlights the human costs of such
practice, focusing on the trauma, suffering, unjust and brutal treatment experienced
by deportees, their families and the communities from which they are forcibly
removed.

In this report, for Anti
Deportation Ireland (ADI), we outline, firstly, the legal and financial
background for deportations from Ireland. We then highlight the effects of
deportation orders and actual deportations for the people concerned. Finally we
look at the fate of deportees, before outlining ADI’s demands.

The rationale behind deportation is the state’s alleged need
to preserve the ‘integrity’ of the immigration regime and to avoid the ‘abuse’
of the asylum system. This view is upheld by the Irish State. In response to an
article written by Ronit Lentin for Metro
Éireann arguing against deportations, Minister for Justice Alan Shatter
replied that deportation remains ‘an unfortunate but necessary component of a
balanced and fair immigration system… For the Irish State to relinquish its
right of deportation, subject of course to our laws and to human rights obligations,
would subvert the principles of fairness and due process which are cornerstones
of our immigration system’ (Shatter, 2012: 10).

Since the 1990s the deportation of what the state dubs as ‘failed’
asylum seekers and other ‘illegal’ migrants has increased exponentially all
across Europe and Ireland has joined in this trend, albeit a decade later, as
Table 1 below demonstrates.

Table 1: deportation and transfer orders

Year

Deportation
orders made

Deportation
orders effected

Transfer
orders effected*

2011

not
available

280

144

2010

1,034

247

142

2009

1,077

236

243

2008

757

162

271

2007

418

139

225

2006

1,573

301

294

2005

1,899

396

209

2004

2,915

599

65

2003

2,411

591

Not
available

2002

2,430

521

2001

2,025

365

2000

940

187

1999

102

6

Source: Department of
Justice, Equality and Defence

*
Numbers refer to asylum seekers who were transferred to the EU member state in
which they first applied for asylum under the Dublin Regulation introduced in
February 2003.

It is worth highlighting that the number of deportation
orders effected in respect of asylum seekers reached its peak in 2004 and
started to decline in the following years. However since 2008 this trend has
reversed and numbers are increasing despite the fact that asylum applications
have been falling steadily since 2002. For instance the number of asylum applications
received in 2011, 1,250, (see Table 2 below) represented a 28% decrease on the
corresponding figure of 1,939 in 2010. Yet 280deportation orders were effected, representing an
increase of 33 (8.5%) over the number of orders effected in 2010. It also worth
mentioning that the enforcement rate for deportation orders in Ireland, that is
deportations orders effected as a proportion of deportation orders signed is
above the European average. The Irish state also distinguishes itself for the
extremely low number of asylum claims which receive positive decisions.[1]
The Irish Times reported that ‘[t]he
Irish acceptance rate for refugees is the lowest in the EU at 1.5 per cent at
first instance and 6 per cent on appeal, significantly below the average EU
recognition rate of 27 per cent, a matter that has attracted much adverse
international comment’ (Coulter, 2012)[2].

Table 2: Number of asylum applications
1999-2011

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

2009

2010

2011

7724

10938

10325

11634

7900

4766

4323

4314

3985

3866

2689

1939

1250

Source: Office of the Refugee Applications
Commissioner

Yet, as Liza Schuster (2003)
argues, deportations represent a paradox. From the state’s point of view, the
reason for continuing deportations, despite the fact that they are expensive in
both financial and human terms, is that they are both ineffectual and
essential.

Deportations send out a
strong sign, namely that states can control their boundaries and ‘remove from
their territory those without a right to remain’, thus ‘assuaging public
opinion, which would not view the state’s incapacity in this area with
equanimity’. Schuster argues, however, that the assumption that the threat of
deportation creates fear and may persuade some to return ‘voluntarily’ is
speculative (Schuster, 2003: 253). In fact the threat of deportation and
draconian immigration and asylum polices do not so much curb immigration but have
the effect of multiplying various states of precariousness, anxiety, and
danger, facilitating illegal immigrants’ exploitation as cheap and unprotected
labour; forcing refugees to take even more dangerous escape routes, and lining
the pockets of unscrupulous smugglers and traffickers.

2. DEFINITIONS AND LEGISLATION

The term ‘deportation’ broadly refers to ‘[t]he act of a
State in the exercise of its sovereignty in removing an alien from its
territory to a certain place after refusal of admission or termination of leave
to remain’ (IOM, 2004). Forced removal is undertaken against illegal entrants,
overstayers and those who have had their asylum claim rejected. In theory, in
the latter case, deportation can only occur after the courts have satisfied
themselves that the life or freedom of the rejected applicant is not in danger.
Even though the terms ‘forced removal’ and ‘deportation’ are often used
interchangeably (both in the scholarly literature and in this report), they may
describe different administrative and legal procedures.

In Ireland there are three different processes for the
forced removal of ‘non-nationals’: deportation, removal and Dublin II transfers.
While this reports deals only with deportation a brief definition of removal
and Dublin II transfers is provided below.

Removal refers to the procedure of return
(endorsed in section 5, Immigration Act 2003) applicable to individuals refused
permission to enter Ireland. Refuse to entry may be linked to a variety of
reasons and a removal decision, unlike a deportation order, does not forbid
re-entry to Ireland. The grounds on which entry may be refused are set out in
the Immigration Act 2004, section 4. Also people who evade immigration controls
or overstay can be subject to removal procedures. Within the first three months
of their stay they can be removed under a purely administrative procedure (see
Immigration Act 2003, section 5).

Dublin II transfers apply to individuals who have already
made an asylum application in an EU member state, prior to their arrival in
Ireland, and are returned to the state where they made their first application.

The main legislative
instrument regulating deportation
procedures is the Immigration Act 1999, section 3, enforced by section 5. Deportation
orders are issued when individuals do not exercise the option available to them
to leave the State voluntarily when they have no permission to remain. Even
though the majority of people who are deported are so-called ‘failed’ asylum
seekers (Deegan, 2012), any non Irish national who fails to comply with the
laws of the State, especially immigration requirements, can be deported (Quinn,
2007).

A deportation order is signed
by the Minister for Justice, Equality and Defence (formerly Minister for
Justice, Equality and Law Reform) and ‘allows the deportee to be forcibly
removed from the State and it requires the deportee to remain outside the State
for ever, irrespective of the circumstances giving rise to its making’ (Quinn, 2007:
xii). Before the order is issued, the person is sent a 15 days letter [3]
outlining the options available: to make representations to the Minister for
leave to remain, to consent to the deportation order, to leave voluntarily
(either independently or through assisted programmes run by the International Organisation
for Migration [IOM]). All these options are valid for 15 working days. After
this time elapses a deportation order can be signed. The majority of people opt
to make representations to the Minister outlining why they should be granted
leave to remain in the state. Processing times for an application can last
years and assessment procedures have been criticised by NGOs, legal
practitioners and migrant support groups for lacking transparency and
inconsistency. Furthermore very few applicants are actually given permission to
stay at this stage.

Once the Minister is
satisfied that a negative decision does not breach the principle of non-refoulement, a deportation order can
be signed. After this, the Repatriation Unit of the Department of Justice sends
the individual concerned an ‘arrangements letter’ setting out the details of
the deportation. The letter requests the person to report at Garda National Immigration
Bureau (GNIB) offices at a specified time. This serves as the formal serving of
the deportation order (Quinn, 2007: 21). Once a deportation order is served,
failure to comply or to collaborate with the GNIB may lead to detention with a
view to secure departure.

In general deportation and
removal procedures are operated domestically by the GNIB and the Department of
Justice through direct international linkages with countries of destinations,
airports, carriers and embassies. Forced removals take place by air, either
through chartered or commercial flights or by sea (the GNIB only uses ferry
ports located in the UK). In the last few years Ireland has also participated
in several joint FRONTEX [4]
return flights and started flight operations in conjunction with the United
Kingdom (the first bilateral return flight took place in September 2010). In
December 2011 Ireland signed an agreement with the UK to share information on
visa applications, including fingerprinting, biometrics and biographical
details, as part of a move designed to improve the visa-issuing process, and to
work towards joint entry standards and enhanced electronic border systems.
According to the UK Border Agency (UKBA) the agreement is also likely to create
“considerable savings” for both countries on removing foreign nationals with no
right to stay. According to the UK Immigration Minister Damian Green:“This agreement will help us quickly refuse
those with poor immigration records, identify asylum shoppers and speed up the
removal process in those cases where people have entered the common travel
area.”[5]

Not all deportations are
effected: on the contrary just 20 to 30 per cent of deportations orders are
actually carried out. This is mostly due to the fact that people cannot be
traced (i.e. they ‘go underground’ or leave the state without contacting the
authorities), but also to legal safeguards. Deportations orders can be
challenged in the High Court by way of judicial review and become invalid if
the Court rules so. However, the concerned person can still be deported while
the judicial review proceedings are ongoing (unless an injunction from the Department
not to enforce the deportation order has been requested). Other reasons preventing enforcement may be the
ill health of the deportee, an inability to identify the country of origin or
the identity of deportees, and failure to obtain travel documents.

3. DETENTION

Detention is one consequence
of the asylum and deportation regimes and part of the mechanism of control and
confinement of populations ‘judged to be disreputable, derelict, and unwanted’
(Wacquant, 1999: 216). ‘Retention’ and ‘holding centres’, ‘waiting areas’ and
similar ‘state-sponsored enclaves of non existent rights’ (Wacquant, 1999: 218)
have proliferated in the past two decades throughout the European Union (Bloch
and Schuster, 2005: 500; Jesuit Refugee Centre-Europe, 2010). Surrounded by
walls of barbed-wired fencing and under constant video surveillance these
‘centres’ often function as ‘launching pads’ for the deportation of failed
asylum seekers, undocumented migrants and people denied entry. These are
‘prisons that do not speak their name’ and conditions of confinement are often
in violation of the law and human dignity (Wacquant, 1999: 218).

Ireland does not have
detention centres for the exclusive housing of immigration detainees such as
exist in the United Kingdom (UK) and other countries. Rather detainees are held
in existing penal institutions run by the Irish Prison Service. Immigration
detainees can also be held at Garda Síochána stations for a limited period of
time not exceeding 48 hours or any more than two consecutive overnight stays.

3.1
Legal grounds for ‘immigration related’ detention

Detention for immigration
purposes is sometimes referred to as administrative detention as it is
detention without trial or conviction, and usually takes place to enable that a
further administrative measure can take place (i.e. deportation or removal). In
Ireland grounds for the administrative detention of non-citizens include:
refusal of entry (Aliens Act 1946, Section 7); ensuring fulfilment of a
deportation order (Immigration Act 1999, as amended by Illegal Immigrants Act 2000, Section 10); asylum
requests that require certain types of investigations (Refugee Act 1996, Section 9.8); and unlawful
presence in the country (Immigration Act 1999, Section 5) (Kelly,
2005). Persons over 18 who are refused permission to land may be arrested and
detained pending their removal. Detainees are often kept for a brief initial
period of time at a Garda station before being either returned to the carrier
on which they arrived, or transferred to one of the nine prisons specified in
immigration regulations (Kelly 2005, p. 20; Immigration Act 2003 (Removal
Places of Detention), Regulations 2005). In addition, authorities can order
masters of vessels entering Irish territory to detain on board “any such
non-national, whether seaman or passenger, whose application for a permission
has been refused by an immigration officer” (Immigration Act 2004, Section 7).

Detention of asylum seekers is not common practice in
Ireland, yet the Refugee Act 1996 section 9(8) makes provisions that
authorizeAn Garda Síochána to detain an
asylum seeker if there is reasonable cause to suspect that the person: poses a
threat to national security or public order; has committed a serious
non-political crime; has not made reasonable efforts to establish his or her
true identity; intends to avoid removal from Ireland in the event of his or her
application for asylum being transferred to a convention country; intends to
enter another state without lawful authority; or without reasonable cause has
destroyed his or her identity or travel documents or is in possession of forged
identity documents. Asylum seekers who are detained under Section 9(8) of the
Refugee Act 1996 must be brought as soon as practicable before a District Court
judge who, if satisfied that one or more of the grounds listed above apply, may
commit the asylum seeker to an authorized place of detention for a period not
to exceed 21 days from the time of the initial detention. This 21-day period
can be extended by a District Court judge for additional periods of 21 days at
a time if the judge believes that one of the grounds continues to apply. In
reality, most asylum seekers are released within a short period of time to
accommodation in hostels that are run by the Reception and Integration Agency
(Jesuit Refugee Service-Europe, 2010: 240).

A person in respect of whom a deportation order has been
made may be detained, if non-compliant, for the purposes of executing the order.
Section 5(1) of the Immigration Act 1999 authorizes an immigration officer or a
member of the Garda Síochána to arrest and detain a person with a final order
of deportation if the individual concerned: has failed to comply with any
provision of the order; intends to leave the country and enter another without
lawful authority; · has destroyed his or her identity documents or is in
possession of forged identity documents; or intends to avoid removal from the
country. In such cases, a person can be arrested and detained without warrant
(Jesuit Refugee Service, 2010: 242). Also persons who receive a Dublin II
regulation transfer order are generally detained pending their removal.

3.2 Conditions of detention

In 2004 the Irish Refugee
Council, the Immigrant Council of Ireland and the Irish Penal Reform Trust
commissioned a research on immigration related detention (Kelly, 2005) in
response to the increasing number of non-Irish nationals being administratively
detained. The report sought to address queries concerning the ‘lack of clarity
and knowledge on the rights and entitlements of these people, the legal basis
for their detention and their treatment during the period of detention’. In the
foreword to the report attention is brought to the fact that

‘[p]eople
detained for immigration reasons are a particularly disadvantaged group - away
from the public eye they may not have access to services which have been made
available for immigrants, they may not be made aware of their rights and
entitlements or may not be able to exercise them because of language and/or
literacy difficulties. They may also experience problems due to cultural
differences. These issues are compounded for
detainees who are not entitled to legal aid’[6] (Kelly, 2005: 2).

Being accommodated in prisons
with other people suspected and/or sentenced for having committed criminal offences
can be extremely traumatic for immigration detainees who often have never
experienced time in prison and/or may be unsure of the reasons why they are
being detained and the length of their detention. Kelly’s report found problems
with overcrowding, strict visiting arrangements, lack of information on legal
entitlements and rights, racist abuse by inmates, and high level of anxiety and
stress due to uncertainty about one’s future (Kelly, 2005). The practice of
holding immigration detainees in Irish prisons has been repeatedly criticised
by authorities including the Council of Europe, the Inspector of Prisons and
Places of Detention, the National Prison Chaplains, the IRC, the Immigration
Council of Ireland (ICI) and the Irish Penal Reform Trust (Kelly, 2005:8). In
2008 the Human Rights Committee advised that Ireland[7]
‘take immediate and effective measures to ensure that all persons detained for
immigration related reasons are held in facilities specifically designed for
this purpose.’ To date, this recommendation has not been implemented by the
Irish government.

COSTS

Deportations are hugely costly, and William Walters (2002:
266) suggests that thinking about the costs of deportations can help to
unsettle the view of deportation as simply an administrative procedure of the
immigration system and start to see it as an industry:

[i]nstead
of an administrative procedure we are provoked into seeing it as a system which
implicates all manner of agents –not just police and immigration officials, but
airline executives, pilots, stewards, and other passengers. Most pointedly, we
are reminded that private companies make money from this form of suffering
(Walters, 2002: 266).[8]

Travel costs are met by the
Irish state, specifically out of the Garda budget (Quinn, 2007: 26). Some of the costs are refunded via co-financing through the
European Return Fund.

As mentioned already, the extremely
high costs involved in carrying out deportations, as well as the manner in
which deportations are carried out, have received a lot of media coverage and attracted
criticism in Ireland. The Irish Times
reported that in February 2006 the State spent more than €250,000 on a
specially chartered flight to deport 13 foreign nationals to China. [13] In March 2008 a Ghanaian man was removed
by charter flight at a cost of €151,900.[14]The
Irish Times reported that a charter
flight due to carry ‘failed’ asylum seekers from Dublin to Nigeria and the
Democratic Republic of Congo was cancelled at short notice in August 2011 at a
cost of €362,000. The flight was also the subject of controversy at the time as
a woman, who was among the deportees, had been treated for bleeding linked to
an apparent miscarriage only a few hours before she was put on the plane (Horgan-Jones,
2011).

4.2 Legal and accommodation
costs

Costs to the State associated with deportations should also
take into account legal expenses when judicial review proceedings against a
deportation order are won by an applicant and other expenses related to
detention. The Irish Independent
reported in December 2011 that

the Irish State is
facing a potential bill of over €100m to fight injunctions granted by the High
Court to 2,000 asylum seekers who are fighting enforced deportation…despite the
mounting costs there appears to be no let-up in the State’s insistence of
fighting all deportation injunctions which cost on average € 50,000 each. In a
number of cases the State has sought costs against law firms… However, these
“wasted costs” cases are being appealed to the Supreme Court at even more
expense (Cusack, 2011).

Extra costs also relate to the fact that there are often
delays between when a deportation order is signed and when it is acted upon
(Gallagher, 2012), which means that failed applicants have to remain in the
direct provision centres allocated to them while not being allowed to work
(like other asylum seekers).[15]
Even without considering the huge human costs caused by enforced poverty,
physical and psychological isolation and socio-economic deprivation, allowing
asylum seekers the right to work would not only be a more humane option but
most probably represent a better investment. The EU commissioner for Human
Rights, in his report on his visit to Ireland in November 2007,[16]
called for the Irish State to allow temporary work permits for asylum seekers,
in line with broader European policy, as a mean to strengthening their autonomy
and providing revenues for the receiving country.

Despite claims that the direct provision system provides the
best value for money (RIA, 2010), it is highly debatable that this is really
the case. According to an article in the Irish
Times, based on figures published by the Minister of Justice,the Irish State spent €69.5 million housing
and ‘caring’ for asylum seekers in 2011,
with the majority of funding used to pay for commercially owned housing
(Gallagher, 2012).[17]
Some €57.8 million of the total cost was spent funding 37 commercially owned direct
provision centres across the country run by a small cluster of private
contractors who have seen their annual turnover soar (FLAC, 2009). Some of the
centres have come to the attention of NGOs and media for failing to provide
even the most basic services like appropriate food and toiletries, for having
poor standard of hygiene, and for the abusive, bullying and racist behaviour of
staff and managers. Despite all the
evidence of the economic and human failure of DP policy, none of the 700
amendments to the Immigration, Residence and Protection Bill 2008 ‘concerned
improving the position of asylum-seekers or overhauling the DP system. Rather,
the new legislation aimed to expedite the processing of asylum claims,
establishing detention centres, and accelerating procedures for deportation’ (Loyal,
2011:119-20). At the time of writing, some 5,169 asylum seekers are cared for
by the State, down from 6,107 in 2010 (Gallagher, 2012).

5.DEPORTATION: HUMAN COSTS

5.1 Uncertainty/Anxiety

There is
general agreement that deportation is an extremely traumatic experience for
those who are removed and for their families, friends and members of the
communities into which they have integrated. The conditions under which people
are deported are inhumane and degrading and, in some European countries, have
led directly to a number of deaths (Fekete 2005; Anderson et al, 2011). The
power of deportation is manifested in more than its execution. People who have
received a deportation order often experience high levels of anxiety and
depression, may develop mental health and other medical conditions, or even resort
to self-harm or/and contemplate suicide. Such issues are compounded by life in
direct provision or detention. The United National Committee for the
Elimination of Racial Discrimination has expressed concern at the negative
impact of delays in determining asylum seekers’ cases. According to the
Department of Justice, almost half of asylum seekers living in direct provision
centres have been there for more than three years, and some have waited for
more than five years for a decision (Cullen, 2011).

A report on immigration related detention in Ireland
compiled for the Jesuit Refugee Service (2010) also highlighted that:

[women
detained in prison pending their removal] were especially anxious about the
fact that they had no right to be informed of the date and time of their
deportation. They were also concerned that they had no resources to fall back
on once they arrived in their country, including something as basic as bus fare
to travel to their homes (JRS-Europe, 2010)

Caroline Hurley, a Nigerian
woman who fought a six-year legal battle before being granted leave to remain
in Ireland compared her experience of living under the threat of deportation to
‘living with a death sentence over your head’ (Smyth, 2011).

5.2
Rupturing families

Deportation can rupture the
unity of the family, especially when parents are deported without their
children or/and when people are forced to take difficult decisions as to where
the children should live. Often families break up following decisions by a
legally resident parent (typically a mother) to stay in Ireland with her child
when her partner is deported, or following the decision to take a child away
when the parent is deported (Smyth, 2010a). According to Sue Conlan, CEO of the
Irish Refugee Council ‘[t]he policy is very short-sighted… [i]t fails to
recognise the importance of the family and the need for stability for the family
and their part in wider Irish society’ (quoted in Smyth, 2010a). In 2009 Irish Times journalist Joe Cahill wrote
that the government had been accused of “State-sponsored child abuse” for
deporting a mother to Nigeria without her four-year-old son, who had been
placed in State care. In this particular case the district court had refused an
application from the Health Services Executive (HSE) to lift the care order to
enable the child to accompany his mother ruling that ‘it was not in the best
interest of the child’ (Cahill, 2009). Because the son was born after the
coming into force of the Irish Nationality and Citizenship Act 2004 he did not
have the right to Irish citizenship.

5.3 Deporting children

The view that the
state’s right to deport comes before the rights of migrant families and migrant
children was made explicit by the Supreme Court in the 2003 Lobe and Osayande
ruling, in relation to the rights of migrant parents of Irish citizen children,
when Justice Susan Denham ruled that if the ‘common good’ requires it, ‘the
Minister (for Justice) has the rightto
terminate the residence in Ireland of non-national parents of Irish citizens,
leading to either the break up of the family or the constructive
deportation of the child citizen’ (Maddock and Mallon, 2003, emphasis added).
This view has clearly not changed. On the contrary, in what seems like a ‘rush’
to deport asylum seekers, the State is now seeking to deport pregnant women
before they give birth. In 2011 the Irish
Independent reported the case of Azwara Aslam a 26 years old Pakistani
woman who was arrested in Galway and brought to Mountjoy prison, with the view
of being deporting, despite being 8 months pregnant. Highly distressed the
woman had to be brought to hospital for fear she would go into labour
prematurely. An emergency sitting of the High Court was held at night which
resulted in an injunction against her deportation being granted (Cusack, 2011).

Deportation is particularly
traumatizing for children, especially if they are born in Ireland and have
never been to the countries they are being deported to. According to figures made
available by the Department of Justice in the end of 2010 ‘one in five people
deported from Ireland since the start of 2010 were children’ (Duncan, 2012). In 2007 a case involving a Nigerian child with autism
received wide media coverage following the support campaign mounted by a number
of concerned parties.[18] The campaign revolved
around the fact that the boy had never been to Nigeria (having been born in
Italy) and that there was a high risk he may be treated as an outcast in
Nigeria and not receive proper educational support. Despite concerted efforts
from Residents Against Racism,
solicitors, teachers and ordinary citizens, the boy was deported to Nigeria
with his mother and sister. Interviewed soon after her deportation, the mother
told a newspaper that the child ‘had been severely distressed since his
arrival. He's always screaming and blocking his ears. We can't go out on the
street. I can't go out unless I get a taxi, and I don't have the money for
taxis. There's so much noise and traffic, it's too much for him. He's still
talking of Mandy, his special needs assistant. He wants to see Mandy". [19]
Activist groups such as Residents Against
Racism (RAR) have in the past organised specific campaigns against
deportations often focusing on the fact that children were being removed by the
Gardai directly from school and prevented from completing their exams.[20]

A number of Irish citizen children have been ‘effectively expelled’
in the last few years because their non-national parents have been deported
(Smyth, 2010b). However more recently a number of deportation orders against
parents of Irish citizen children have been quashed following
a landmark judgment at the European Court of Justice (Smyth, 2011). On 8 March 2011 the European Court of Justice
(ECJ) ruled in the Zambrano case (C34/09), that an EU member state may not
refuse the non-EU parents of a dependent child who is a citizen of, and
resident in, an EU member state the right to live and work in that member
state. While the impact of this decision for Irish law should not be
underestimated, the number of people who may actually benefit from the
application of this decision is limited due to the changes in Irish citizenship
law following the Irish Nationality and Citizenship Act 2004 (which came into
force on 1 January 2005). [21]

Answering a Dáil question regarding the number of cases
covered by the Zambrano ruling in January 2012, Minister Shatter stated that
approximately 1,700 cases had been identified where the Judgment may apply (this
number refers only to cases where the third country national parents involved
have no separate right of residency in the State by virtue of being residing
lawfully in the state).[22]
According to figures provided by the Department of Justice in March 2012, 1,680
persons had applied to the Irish Naturalisation and Immigration Service (INIS)
to have their case to remain in the State examined in accordance with the
principles set out in the Zambrano Judgment. Decisions have been made in 925
cases with permission to remain in the State granted in respect of 791 of these
cases. Another 148 cases in respect of which judicial review proceedings were ongoing,
have been granted permission to remain in the State under the terms of the
Zambrano Judgment.[23]

Do the rights of the non-national
parent continue to apply after the EU citizen child reaches the age of
majority? To what extent will the judgment be applied to a non-marital family?
Can a parent who does not have an involvement with the care and upbringing of
the EU citizen child rely on the decision in Zambrano? What if an EU citizen
child is being cared for and nurtured by a non-national guardian (blood related
to the child or otherwise), does this guardian gain rights from the Zambrano
decision?

Young people who arrived as unaccompanied minors and whose
application has been refused also face a difficult situation knowing that they
may receive a deportation order once they reach 18. This is a factor that,
according to the Department of Children, may lead unaccompanied minors to leave
the care of the HSE and go underground as they are nearing 18 (Duncan, 2012).
Deporting young people who have been through a multiplicity of traumatic
events, who have struggled to rebuild their social and support networks at a
time in their lives when they should be looking forward to their future, is
both cruel and unnecessary. These are people who spent the formative years of
their lives in Ireland: to deport them means to take them away from their
peers, friends and familiar environments that have shaped their identities.
Deportation causes feelings of shame, pain connected to the re-enaction of
trauma, damages career prospects and self-esteem, and renders young people
(lacking financial resources and street savvy) vulnerable to different types of
abuse.

5.4Deporting EU citizens’ spouses/partners

The protection of marriage
and family life is enshrined in Article 41 of the Irish Constitution. Article
42.1 and Article 42.5 also state that children have the right to be cared,
reared and educated by both parents. However neither parentage to an Irish
citizen child (see section 5.3) nor the fact of marriage to an Irish citizen
have in themselves precluded deportation.

Removing individuals who have
an EU or Irish partner does not only run counter constitutional principles but
also constitutes a breach of the EU free movement directive[24].
In 2003 a High Court judge found that a Russian woman who married an Irish man
in 2002 had been illegally deported. The judge granted an injunction
restraining the Minister for Justice from preventing the woman from re-entering
the State in reliance on that deportation order.[25]
In March 2010 however the Irish state deported Christy Ogdeide Ryan, the
52-year-old Nigerian wife of a 68-year-old Irish man, and Henry Olabode, a
Nigerian man married to an Irish woman in Athlone (Smyth, 2010a).Also in 2010 the Immigrant Council of Ireland
lodged a formal complaint with the European commission over the deportation of
a Georgian man engaged to marry a UK national who was a permanent resident in
Ireland (Gallagher, 2010). The Irish Time
reported the case of a Nigerian architectural student, married to an Irish
woman, who had successfully challenged his deportation made while the woman was
pregnant. In this case the High Court found the Minister for Justice’s decision
to deport the man effectively amounted to a permanent forcible separation of
the family and ruled the Minister had not fairly weighed their family rights (Carolan,
2011).

Cases such as these clearly
show inconsistencies and lack of transparency in the application of the law as
well as the high level of discretion and individual bias characterising deportation
decisions.

5.5 Lack of monitoring
procedures

The ways deportations are
carried out, and especially the use of brutal methods ranging from
psychological intimidation to physical violence, have also raised serious
concerns.

Men, women and children are
often taken from the hostels in the early hours of the day, when they are still
in their bed clothes and given as little as 15 minutes to gather their belongings.
The necessity of pre-dawn raids cannot be justified but as a deliberate measure
to confuse and intimidate deportees and a way to avoid public scrutiny, thus
minimizing disruption from migrant supporting groups.

Irish NGOs have also commented
negatively about the lack of monitoring procedures, poorly trained staff and
the unnecessary use of violent or humiliating methods of control (Cunningham,
2004; Tyrrell, 2004). In December 2010 for instance, 34 Nigerian nationals and
a two year old ‘Irish citizen’ child on a FRONTEX organised joint flight were returned
to Ireland due to the development of technical troubles in Athens.[26]According to the then Minister for Justice Dermot
Ahern, this was the first time that such an event occurred.[27]
On this occasion the Irish Refugee Council (IRC) addressed a letter to the Minister
requesting an independent inquiry into the ‘inhumane and degrading treatment’ of
deportees by immigration officers and lodged a complaint with the Garda
Ombudsman Commission. [28]
The letter noted that the eight women, thirteen children, and fourteen men had endured
long delays, inadequate food and limited access to sanitary facilities during
the flight.Many of them had been taken
from their homes in the early hours of the morning with little or no
opportunity to properly dress or take personal belongings with them.They were kept in a holding area at Dublin
Airport for many hours until they were put on the FRONTEX flight along with other
deportees from several EU states. The IRC also pointed that of the deporting
countries on board the FRONTEX flight, Ireland was the only one to deport
children. Throughout the flight, the individuals were not allowed to move
freely or converse with others.They
were not allowed to close the door, when using the toilet (this applied to women
who were on their menstrual period).Children
were forced to use bottles to urinate. One woman, a mother of two young
children (one of them an Irish citizen), was physically restrained before being
sedated.

On arrival at Athens airport,
they remained on the flight for two hours before being taken to an airport
lounge where they had to wait fourteen hours before being returned to
Dublin.They were given little
refreshment during that period, while food and drinks where widely available to
groups under the control of officers from other jurisdictions.On return to Dublin on 16th
December 2010, those not detained were required to live at Balseskin Reception
Centre in Finglas, Dublin, despite the fact that, due to severe weather
conditions, there was no running water from 16th until 20th
December 2010.[29]

Answering a series of parliamentary questions in relation to
the event, the Minister for Justice and Law Reform, Dermot Ahern replied that
every effort had been made ‘to provide the persons on board the flight with
appropriate refreshments and other facilities’. He added that his department,
in conjunction with the Garda National Immigration Bureau (GNIB) and the other
members of FRONTEX had conducted a review of this operation and that he was
satisfied that the deportation operation on 15 December 2010 was properly
conducted and refused calls for an independent inquiry.[30]

In light of that experience and subsequent
deportations, the IRC made several practical proposals to the state as to how
deportations could be carried out in a more ‘humane’ manner. Nonetheless the
system has remained the same and the Irish state has not entered into any
discussions with the IRC or any other body which monitors deportations about
alternative methods of effecting removals.[31]

5.6
Limited legal safeguards

Deportation orders can be
issued without the Minister providing explanations/reasons as to why return
does not infringe a person’s right to protection (section 5 of the Refugee Act
1996).[32]
This situation is compounded by the fact that there is very limited scope to
challenge deportation decisions in Ireland because there is no independent
appeals body. Even though deportation orders can be subjected to judicial
reviews, if there are substantial grounds to prove that the Minister failed to
disclose the basis upon which specific claims for asylum were rejected, ‘a
judicial review in the High Court is restricted to considering narrow points of
law in how a decision was taken rather than considering the merits of the
decision itself’ (Smyth, 2010b). This raises serious concerns that the law is
stacked in favour of the interests of the State. The arbitrariness and
prejudicial nature of decisions concerning asylum applications has been
analysed in depth by Steven Loyal who argues that ‘political rather than
objective criteria have consistently been used in deciding whether
asylum-seekers are given refugee status’ (Loyal, 2011; 81). While the existence
of an independent appeals mechanism – the Refugee Appeal Tribunal (RAT),
established in 2000- should in theory guarantee that shortcomings are
redressed, the tribunal has incurred in widespread criticism for the ‘culture
of secrecy’ surrounding its decisions (Coulter, 2005). Serious concerns have also
been raised about the conduct of individual members of RAT and the selection
procedure.[33]
In 2011 court proceedings were brought against the Tribunal on the basis of
allegations of bias and unfairness in the determination of asylum appeals
(Conlan, 2012; see also Coulter, 2012).[34]
It is also important to remember that from the making of the application to be
recognised as a refugee, to an appeal to the RAT, then consideration of a
subsidiary protection claim and then the leave to remain claim, a person can
wait as long as five years. During this
time and despite the dire conditions of living in direct provision, it is
likely that asylum seekers continue to develop their family and private lives,
build links within the communities and localities in which they live, become
accustomed to life in Ireland, and undertake education. In such cases deportation
represents a form of violent uprooting which damages both individuals and
communities and, contrary to the government’s stated commitment to the policy
of ‘integration’, disregards integration as it naturally unfolds in people’s
everyday lives. A further aspect that has not been taken up in the literature
is the trauma related to appeals procedures for deportees and their families.

THE FATE OF DEPORTEES

It is hard to know what
happens to people once they are deported as there are no official tracking or
monitoring procedures. Not only little is known about the resettlement
experiences of deportees but the long term effects of deportation on deportees’
lives are difficult to gauge. Nathalie Peutz, a US scholar who has written
extensively on deportation, argues that:‘[t]he deportation of an individual may
take only a few days, but the significance of this episode – replicating and
engendering as it does histories of suffering and subjection –will continue to
reverberate in the lives of the “deportees” and their kin’ (Peutz, 2010: 372). Furthermore,
any attempt to justify deportation based upon the rightfulness of the law
clearly fails to consider ‘the multiple violent paradoxes of being deported to
one’s nominal place of origin after years of even a lifetime of living abroad,
after political and social boundaries have been redrawn, after ethnicity and
nationality have come undone’ (Peutz, 2010: 403).

In light of the increasing
number of immigrants who are deported daily ‘it is necessary that the multiple
and enduring effects of deportation –
not only as a state practice but also as an individual and individualizing experience
– be explored more fully’ (Peutz, 2010: 374). Yet it is difficult for immigrant
and refugee support groups, as well as researchers, to assess such effects
mainly because of the complexities involved in tracking and maintaining contact
with deportees. Though the evidence is limited some organisations found that there
have been cases of deportees being subjected to incarceration, torture and
other forms of persecutions in their countries of return (Bloch and Schuster,
2005). On the 5th of June 2012, TheGuardian reported the story of
‘Hari’, a victim of torture from Sri Lanka who had been deported from the UK
after failing in his asylum claim despite documentary evidence from the
International Committee of the Red Cross (Malik, 2012). Fearing for his life,
Hari spent the first six months in hiding until he was taken by the Sri Lankan
criminal investigation department and put in prison. Here ‘[he] was beaten,
whipped with electric cables, suffocated with a plastic bag containing petrol,
hung by his ankles by nylon rope and burned with cigarettes’ (Malik, 2012).
Hari was eventually released after paying a bribe and fled to Russia and from
here made his way back to the UK where he attempted suicide after hearing that
his family had been threatened by security services. Although this case refers
to the UK, it is not unlikely that deportees from Ireland may go through
similar harrowing experiences.

Even when the experience of
resettlement does not include physical violence, deportees are likely to
experience a sense of displacement -engendered by the removal process and the
dislocation of their social life (Alexander, 2004)- they may be stigmatised by
their own families and communities and fail to integrate socio-economically
because of lack of financial capital and work experience. Substance abuse and
mental health problems, in some cases leading to self-harm and/or suicide, are
not uncommon amongst individuals who have been deported. An ADI member, during
our second meeting, reported the story of a doctor who committed suicide upon
return to Nigeria.

In June 2005 RTE programme Prime Time tracked down four Nigerian
children who went missing after their mothers, Iyabo Nwanze and Elizabeth
Odinsi, had been deported to Nigeria with two of their children. Iyabo’s eight
years old son Emmanuel told the reporter about having to move from house to
house to avoid being taken into state care. The programme also found that
Emmanuel’s brother had contracted malaria since his arrival in Lagos and that
he, his mother and Elizabeth were sharing a two bedroom house with other six
people (Lentin and McVeigh, 2006: 50)

7.CONCLUSION and ANTI DEPORTATION
IRELAND’S DEMANDS

The system of deportation is
inefficient and involves huge cost to the taxpayer, while deepening the misery
inflicted on asylum-seekers and other immigrants. This report details the
massive costs of flights, legal fees and private security firms to the
exchequer, and the human costs in terms of physical and emotional trauma
experienced by individual deportees and their families. Anti Deportation Ireland firmly believes that deportation is
inhuman, unnecessary and a violation of an individual's fundamental human
rights, especially the right to seek and receive protection, the right to
family life and freedom of movement. Anti
Deportation Ireland’s specific demands are:

Irish
Refugee Council [IRC]. 2008. The Right to Protection: Submission to the
Oireachtas Joint Committee on Justice, Equality, Defence and Women’s Rights on
the protection aspects of the Immigration, Residence and Protection Bill, Dublin:
IRC.

Irish Refugee Council [IRC]. 2011. Submission to the
European Commission against Racism and Intolerance, Dublin, IRC.

Kelly,
M. 2005. Immigration-related detention in Ireland: Research report for the
Irish Refugee Council, Irish Penal Reform Trust and Immigrant Council of
Ireland. available at http://idc.rfbf.com.au/wp-content/uploads/2009/06/irc-detention-report-2005.pdf
(accessed 9 December 2011).

[1]See: Doras Luimni, Nasc, IRC:‘Submission for the Twelfth Session of the Working Group on
the Universal Periodic Review: Ireland’, March
2011,

available
at
http://www.irishrefugeecouncil.ie/wp-content/uploads/2011/08/Doras-Luimni-Nasc-IRC_UPRsubmission.pdf

[2] Provisional figures for the end of 2011 indicate that
there were approximately 5,400 persons seeking international protection
accommodated in direct provision centres in the State. See Irish Times: ‘Child asylum seeker takes bias case’,11/04/2012; http://www.irishtimes.com/newspaper/ireland/2012/0411/1224314607999.html

[3] In October 2010, a
coalition of organisations (Crosscare Migrant Project, DorasLuimní, Immigrant
Council of Ireland, Irish Refugee Council, Migrant Rights Centre Ireland, The
Integration Centre and NASC: The Irish Immigrant Support Centre) presented a
letter to the Dáil regarding provisions for summary deportations contained
within the 2010 Immigration, Residence and Protection Bill. It noted that while
current procedures regarding deportation provide an individual fifteen days to
make representations to the Minister as to why he/she should be allowed to
remain in the State, the 2010 Bill would not permit this provision. The
establishment of a ‘truly independent appeals mechanism for immigration and
protection decisions’ is also recommended (Joyce, 2011: 14).

[4] FRONTEX (Agency for the
management and operational cooperation at the external border) is an EU agency
based in Warsaw providing assistance for joint return operations and identifying
best practices on the acquisition of travel documents and removal of non-EU
nationals irregularly present in the territory of an EU State. Even though
Ireland is not a part of the Schengen area, it participates in meetings of the
Frontex Risk Analysis Network and provides relevant statistical data on a
monthly basis (Joyce, 2011).

[8]Nathalie Peutz echoes
Walters when she writes that despite having been traditionally legitimized as a
‘sovereign practice’, deportation ‘must be considered part of a wider array of
practices of removal... that have become increasingly ingrained in our
political and cultural landscapes as states eager to assert their sovereignty
in an age of terror team up with private corporations experienced in the
industrialization of confinement and exclusion’ (Peutz, 2010: 373)

[15]In contrast to all other European countries, except Denmark, the Irish
state denies asylum seekers the right to work, a policy which according to
Loyal (2011: 97) aims at ‘maintaining state control and ethno-racial regulation
of the population’.

[16] Council of Europe,
2008, ‘Report by the Commissioner for Human Rights, Mr Tomas Hammarberg on his
visit to Ireland’, available at https://wcd.coe.int/ViewDoc.jsp?id=1283555#P422_108253,
last accessed 7/06/2012.The reports
says: ‘In addition to strengthening the autonomy of asylum-seekers and
providing revenues for the receiving country, access to the labour market may
actually facilitate reintegration into the country of origin by making it
possible for the asylum-seeker to return home with a degree of financial
independence or acquired work skills’.

[20]See: Irish
Times, 14 April 2005. ‘Agents of State blamed for breaking up families’; Irish Times, 25 March, 2005 ‘U turn was
right thing to do says McDowell’)

[21] On 11 June 2004 a
referendum was held on a proposal to change the constitutional entitlement to
Irish citizenship. The change, approved by a majority nearing 80%, meant that
‘People born in the island of Ireland after the constitutional amendment took
effect would not have a constitutional right to be Irish citizens, unless, at
the time of their birth, one of their parents was an Irish citizen or was
entitled to be an Irish citizen’. See http://www.refcom.ie/en/Past-referendums/Irish-citizenship/

[31]
Submission by the Irish Refugee Council
to the European Commission against Racism and intolerance, 2011.
available at
http://www.irishrefugeecouncil.ie/wp-content/uploads/2011/08/Submission-to-the-European-Commission-against-Racism-and-Intolerance.Nov11.pdf

[33]RAT’s members are not
selected through an independent procedure but appointed by the Minister for
Justice. There is no interview process and no necessary qualification required
other than five years in legal practice. Members are often chosen because of
their political and social affiliations (Coulter, 2005).